A suit against the Government or a public officer without prior notice under Section 80(1) of the CPC is not maintainable and should be rejected, not dismissed.

MANISANA, J. :- These four (4) appeals, namely, FA Nos. 6(SH) 90, 7(SH) 90, 8(SH)90 and 9(SH)90 are disposed of by this common judgment as the question of facts and law raised in these appeals are similar.

2. Facts. - The plaintiff in each of the suits filed the suits against the State of Meghalaya and three of its officers. In all the suits the two-months prior notice under Section 80(1), CPC was required. But, the suits were filed before the expiry of two (2) months. Therefore, the trial Court dismissed the suits as not maintainable relying on a decision of the Supreme Court reported as Bihary v. State of Bihar, AIR 1984 SC 1043. Hence these appeals.

3. The appellant in each of the appeals has filed application praying that the appeals may be disposed of treating the order of dismissal as an order rejecting the plaint.

4. Upon hearing the learned counsel for the parties, the question which arises for consideration is whether the plaint is to be returned or rejected, or the suit is to be dismissed.

5. Under Sub-Section (1) of Section 80, CPC, save as otherwise provided in Sub-Section (2), no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after the notice in writing has been served in the manner prescribed for under Sub-Section (1). Under Sub-Section (2) of Section 80 which has been added by the Amending Act, 1976, a suit for obtaining urgent and immediate relief against the Government or the public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by Sub-Section (1). Under the proviso to Sub-Section (2), the Court shall, if it is satisfied after hearing the parties, that no urgent or imme-diate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of Sub-Section (1). Sub-Section (2) of Section 80 provides that no suit shall be dismissed merely by reason of any error or defect in notice under Sub-Section (1), as provided thereunder.

6. With regard to return of the plaint Order 7, Rule 10, CPC provides for return of the plaint in all the cases where the Court is not entitled to entertain it for want of jurisdic-tion (territorial and/or pecuniary), or of jurisdiction to entertain a cause. The present is a case where the trial Court has jurisdiction to entertain the plaint. In other words, the trial Court has jurisdiction to entertain the suit but the plaint is defective. Under the proviso to Sub-Section (2), as already stated, the Court shall return the plaint, if it is satisfied that no urgent or immediate relief need be granted in the suit. The compliance with Sub-Section (1) is mandatory (see State of Madras v. C.P. Agency, AIR 1960 SC 1309). The return of the plaint can only be made under Sub-Section (2), not under Sub-Section (1). Therefore, a defective plaint for non-compliance with the provision of Sub-Section (1) cannot be returned.

7. The question which, therefore, arises for consideration is whether the plaint is to be rejected or the suit is to be dismissed. Under clause (d) of Order 7, Rule 11, a plaint shall be rejected "where the suit appears from the statement in the plaint to be barred by any law". The meaning of rejection of the plaint is that the plaint is thrown away as not validly instituted without determining the right of the parties in controversy. But, the rejection of plaint shall be deemed to be a decree within the meaning of "decree" as is defined under S. 2(2), C.P.C. and, therefore, rejection of the plaint terminates or stops the action without a final judgment on the rights of the parties in controversy.

8. Under clause (ii) of Order 7, Rule 11, a plaint shall be rejected where the suit appears from the statement in the plaint to be barred b